Court of Appeal for Ontario
CITATION: Kieswetter Resource Recovery Group Inc. v. 1313192 Ontario Limited, 2009 ONCA 259
DATE: 20090325
DOCKET: C47488
BEFORE: Doherty, MacPherson and MacFarland JJ.A.
BETWEEN:
Kieswetter Resource Recovery Group Inc.
Plaintiff (Respondent)
And
1313192 Ontario Limited and Peter John Syrier
Defendants (Appellants)
AND BETWEEN:
1313192 Ontario Limited and Peter John Syrier
Plaintiffs by Counterclaim (Appellants)
And
Kieswetter Resource Recovery Group Inc., 737259 Ontario Limited, Ken Kieswetter and Roger Kieswetter
Defendants by Counterclaim (Respondent)
AND BETWEEN:
Kieswetter Resource Recovery Group Inc.
Plaintiff (Respondent)
And
Syri-Con Corporation and 1313192 Ontario Limited
Defendants (Appellants)
COUNSEL:
Morris Manning, Q.C. and Frederick J. Shuh, for 1313192 Ontario Ltd.
Graham M. Bennett and Edward D’Agostino for the respondent Kieswetter
HEARD: March 19, 2009
On appeal from the judgment of Justice B.H. Matheson of the Superior Court of Justice dated July 3, 2007.
By the Court:
[1] The appellants appeal the judgment of Matheson J. which awarded damages against them for various sums found owing and seek a new trial.
[2] The action arose as the result of the sale of an operating gravel pit by the respondents to the appellant numbered company and that company’s failure to pay amounts it contracted to pay under the terms of the agreements. The judgment against the personal appellant was on his personal guarantee.
[3] The appellants had, among other business interests, a successful pre-cast concrete business which at the time employed over 50 people and had annual sales in excess of 5 million dollars. It was thought acquiring their own gravel pit would save them money on the cost of raw materials they required for that business. In addition it would provide employment for Peter Syrier’s son, Henry.
[4] The respondents owned two operating gravel pits at the time known as the Heidelberg and New Dundee pits. They wanted to consolidate their operation at the Heidelberg site and so decided to sell the New Dundee pit.
[5] The central issue between the parties was whether the respondent company and its principals, Roger and Ken Kieswetter had given various oral warranties and agreements which induced the appellants to enter into the agreements pursuant to which they acquired this business.
[6] The alleged oral agreements included:
- – a promise by the respondents to help the appellants make additional sales of product by acquiring the other 50% of the pit’s output themselves or by directing other business (including customers of their own) to the appellants
[7] It was the appellant’s evidence that they expected their pre-cast operation to use about 50% of the pit’s expected output.
– a promise to divide the area to be serviced by the Heidelberg and New Dundee pits – in effect a non-compete clause
– to assist the Syrier’s in learning the aggregate business and provide training to their employees.
[8] In addition it was alleged that the respondents warranted a profit of $2 per tonne of materials processed and that approximately 120,000 tonnes were to be processed each year. The evidence of the respondents was that no such warranties or oral agreements were made.
[9] The respondents offered to provide assistance to the appellants as they started up and learned the business and did so. But they made no oral representations, warranties or promises to do so. Their only agreements are those reflected in the written documentation prepared in connection with the sale of the business and nowhere in those documents is there any mention of any agreements of the nature suggested by the appellants.
[10] The appellants argue that the language of the personal guarantee:
… in consideration of Kieswetter Resource Recovery Group Inc. (herein called the “Lender”) agreeing to deal with or to continue to deal with 1313192 Ontario Limited (herein called the “Borrower”) the undersigned hereby unconditionally guarantees …
is evidence of and references the oral representation and promises made by the respondents. We disagree. Clearly this language relates to the fact that the respondents agreed to contract with the numbered company, newly incorporated for this transaction, a company without a work history, experience and most importantly, assets and hence the need for a personal guarantee from Mr. Syrier.
[11] The trial judge made important factual findings which, absent palpable error, are entitled to deference in this court. He found that the appellant, Peter Syrier, was a very successful businessman, that he was represented by experienced commercial counsel throughout the transaction and that he engaged his own independent engineering firm to advise him in respect of the sale.
[12] He remarked that he could not understand if the undertakings and warranties alleged, were so important why they were not included in the final documents.
[13] He concluded that the respondents did not make the oral undertakings or warranties alleged and accepted the evidence of the respondents over that of the appellants in this respect. In addition he noted that there was no reference made to any alleged oral undertakings or warranties by the appellants until two years after the contract had been signed when they stopped all payments to the respondents and received a demand letter from the respondent’s solicitors. Indeed even in the appellants’ solicitors response to that demand letter there was no mention made of breach of any oral warranties or undertakings.
[14] In our view the evidence overwhelmingly supported the trial judge’s conclusion and we would not interfere with his finding in this respect.
[15] The appellants further argue that the trial judge erred in refusing to allow them to call a Mr. Thomson to give evidence about a purported conversation Thomson had with one of the Kieswetters in the spring of 2006. In our view the trial judge’s ruling was proper. The proposed evidence would not have assisted in determining the issues before the trial judge. Those issues were concerned with the formation of the contract and the two years following the signing of the contract in October, 1998 up until the time the appellants stopped making payments to the respondents.
[16] The purported conversation took place in the spring of 2006 long after the signing of the contract, the stopping of payments due under the contract and after litigation among the parties had been ongoing for several years.
[17] Having found the oral undertakings and warranties were not given was conclusive of the appellants’ case as it is of this appeal.
[18] We note that at trial there were two actions before the trial judge. In this court the appeal related to only one of the two actions. No appeal was taken in relation to the judgment in the action that related to the payment of invoices and we express no opinion on the rulings made in relation to that action.
[19] In the result the appeal is dismissed. Costs to the respondents on a partial indemnity basis fixed in the sum of $5,800 inclusive of disbursements and GST which figure was agreed to by counsel.
RELEASED: March 25, 2009 “DD”
“David Doherty J.A.”
“J.C. MacPherson J.A.”
“J. MacFarland J.A.”